§ 12-09. Applications for grant, renewal, modification or transfer of franchises.

(A)

A written application shall be filed with the County for (1) a grant of an initial franchise; (2) renewal of a franchise in accordance with 47 U.S.C. §546; (3) modification of a franchise agreement; (4) a transfer of a franchise; or (5) any other relief from the County pursuant to this chapter or a franchise agreement.

(B)

To be acceptable for filing, a signed original of the application shall be submitted together with seven (7) copies. It shall be accompanied by the required non-refundable application filing fee as set forth in subsection 12-09I, conform to any applicable request for proposals, and contain all reasonably required information. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

(C)

All applications accepted for filing shall be available for public inspection.

(D)

An application for the grant of an initial franchise may be filed pursuant to a request for proposals issued by the County or on an unsolicited basis. The County, upon receipt of an unsolicited application, may issue a request for proposals. If the County elects to issue a request for proposals upon receipt of an unsolicited application, the applicant may submit an amended application in response to the request for proposals, may inform the County that its unsolicited application should be considered in response to the request for proposals, or may withdraw its unsolicited application. An application which does not conform to the reasonable requirements of a request for proposals may be considered non-responsive and denied on that basis.

(E)

An application for the grant of an initial franchise shall contain, at a minimum, the following information:

(1)

The name and address of the applicant and identification of the ownership and control of the applicant, including; the names and addresses of all persons with five percent (5%) or more ownership interest in the applicant, including the names and addresses of parents or subsidiaries holding such ownership interests directly or indirectly; the persons who control the applicant; all officers and directors of the applicant; and any other cable system ownership or other communication ownership interest of each named person;

(2)

An indication of whether the applicant, or any person controlling the applicant, or any officer, director or person with five percent (5%) or more ownership interest in the applicant, has been adjudged bankrupt, had a cable franchise or license revoked, or been found by any court or administrative agency to have violated a security or antitrust law, or to have committed a felony, or any crime involving moral turpitude; and, if so, identification of any such person and a full explanation of the circumstances;

(3)

A demonstration of the applicant's technical, legal and financial ability to construct and operate the proposed cable system, including identification of key personnel;

(4)

A statement prepared by a certified public accountant or duly authorized financial officer of the applicant regarding the applicant's financial ability to complete the construction and operation of the cable system proposed;

(5)

A description of the applicant's prior experience in cable system ownership, construction and operation, and identification of communities in which the applicant or any person controlling the applicant or having more than a ten percent (10%) ownership interest in applicant has, or has had, a cable franchise or license or any interest therein;

(6)

Copies of all franchise agreements, licenses, permits or authorizations to operate a cable television system or to provide telecommunications services within Orange County;

(7)

Identification of the area of Orange County to be served by the proposed cable system, including a description of the service area's boundaries;

(8)

A description of the physical facilities proposed, including the extent and location of all facilities and equipment, channel capacity, performance characteristics, headend, and access facilities; upon request, the applicant shall complete information on technical design available for inspection;

(9)

Where applicable, a description of the construction of the proposed cable system, including an estimate of plant mileage and its location, the proposed construction schedule; a description, where appropriate, of how services will be converted from existing facilities to new facilities; and information on the availability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities, the technical or physical impact on public rights of way, and potential conflicts with other users of public rights of way;

(10)

For informational purposes, the proposed rate structure, including projected charges for each service tier, installation, converters, and other equipment or services, and the applicant's ownership interest in any proposed program services to be delivered over the cable system;

(11)

A demonstration of how the applicant's proposal will reasonably meet the future cable-related needs and interests of the community, including a description of how the proposal will meet the needs described in any recent community needs assessment conducted by or for the County;

(12)

A description of any non-cable telecommunications services offered by the applicant or its parent, affiliate or subsidiary and the applicant's plan with respect to the availability of such services to subscribers in the County;

(13)

Pro forma financial projections for the first five (5) years of the franchise term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules;

(14)

If an applicant proposes to provide cable service to an area already served by a franchisee, the identification of the area where the overbuild would occur, the potential subscriber density in the area which would encompass the overbuild, and the ability of the public rights-of-way to accommodate an additional cable system;

(15)

A statement detailing how the applicant will ensure interconnection capability with other cable systems pursuant to the requirement of Section 12-15A7 or as such requirements may be modified by the County Administrator from time to time.

(16)

Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this chapter or that the County may request of the applicant that is relevant to the County's consideration of the application; and

(17)

Character qualifications. The past or current involvement of the applicant, any of its principals or managers as a party in criminal or civil proceedings is relevant to evaluation of an applicant's character qualifications. The applicant shall supply all records as deemed necessary by the County Administrator or the Board. In addition:

(a)

Criminal proceedings. Advise whether the applicant (including the parent corporation, if applicable), any principal or manager has ever been found guilty in a criminal proceeding (felonies or misdemeanors) in which any of the following offenses have been charged: fraud, embezzlement, obstruction of justice (or other misconduct affecting public or judicial officers in the performances of their official duties), advertising, perjury, antitrust violations (state or federal), violations of FCC regulations or conspiracy to commit any of the foregoing. If "yes" in any instance, provide specifics, such as date, court, sentence or fine, etcetera.

(b)

Civil proceedings. Advise whether the applicant, any principal, manager or any cable operator of which any principal or manager was or is a principal or manager has ever been a party to a civil proceeding in which he or it was held liable for any of the following, or is now a party to any such proceedings: unfair or anti-competitive business practice, antitrust violations (state and federal), including instances in which consent decrees were entered, violations of securities laws (state and federal), false/misleading advertising violations of FCC regulations, racketeer influenced and corrupt organizations, or contraband forfeitures. If "yes" in any instance, provide specifics.

(c)

Franchise violations. Advise whether the applicant, any principal, manager, or any cable operator of which any principal or manager was or is a principal or manager has ever been subject to any penalty, criminal or civil, involving failure to comply with the requirements of a cable television franchise. If "yes," provide specifics.

(d)

Legal action against franchising authority. Advise whether the applicant, any principal, manager or any cable operator of which any principal or manager was or is a principal or manager has ever instituted legal action against any of its franchising authorities. If "yes," describe action and result.

(e)

Revocation of licenses. Advise whether the applicant, any principal, manager, or any cable operator of which any principal or manager was or is a principal or manager has ever had a business license (defined to include FCC licenses, alcoholic beverage and restaurant licenses, etc.) revoked, suspended or renewal denied, or is a party to a proceeding which may result in same. If "yes" in any instance, provide specifics.

(18)

Small cable operator. Where an applicant is a small cable operator, the operator shall include in its application a statement (a) identifying any provisions of this chapter which it believes should be inapplicable to its franchise or cable system; and (b) the legal authority under federal and state law upon which the applicant is basing its request for a waiver of such provision(s).

(19)

An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the proposal meets all federal and state law requirements.

(F)

An application for modification of a franchise agreement shall include, at a minimum, the following information:

(1)

The specific modification requested;

(2)

The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved;

(3)

A statement whether the modification is sought pursuant to 47 U.S.C. §545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. §545;

(4)

Any other information reasonably necessary for the County to make an informed determination on the application for modification; and

(5)

An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with all federal and state law requirements.

(G)

An application for renewal of a franchise shall comply with the requirements of Section 12-26.

(H)

An application for approval of a transfer of a franchise shall comply with the requirements of Section 12-27.

(I)

To be acceptable for filing, an application shall be accompanied by a non-refundable filing fee in the following applicable amount:

1.

For a new or initial franchise: ..... $7,500

2.

For renewal of a franchise: ..... 4,000

3.

For a transfer of a franchise (other than a pro forma transfer): ..... 3,000

4.

For a pro forma transfer of a franchise: ..... 1,500

5.

For modification of a franchise agreement, including pursuant to 47 U.S.C. § 545: ..... 3,000

6.

For any other relief: ..... 1,500

The purpose of the filing fee is to defray a portion of the County's costs in processing an application. Unless otherwise prohibited by applicable federal law, the filing fee is a charge incidental to the awarding or enforcing of a franchise within the meaning of 47 U.S.C. § 542(g)(2)(D). Therefore, the filing fee is not included within the meaning of the term "franchise fee," it may not be deducted from the franchise fee imposed in a franchise agreement, and it shall not be passed through to subscribers.

In addition, the County, in considering and processing the application, may retain consultants, experts and attorneys. Prior to final consideration of the application by the Board, the County shall bill the applicant for the amount of the retainee's reasonable fee due as of the date of billing, and its method of calculation, and the applicant shall pay such amount. Within thirty (30) calendar days from the date of the Board's decision approving or denying the franchise, renewal, modification, or transfer, the County shall bill the applicant for the remainder of the amount of the fee and its method of calculation. If the remainder of the fee is not paid to the County within sixty (60) calendar days from the date of the Board's decision approving or denying the franchise, renewal, modification, or transfer, any approval granted by such decision shall be null and void. Unless otherwise prohibited by applicable federal law, this fee is a charge incidental to the awarding or enforcing of a franchise within the meaning of 47 U.S.C. §542(g)(2)(D). Therefore, it is not included within the meaning of the term "franchise fee," it may not be deducted from the franchise fee imposed in a franchise agreement, and it shall not be passed through to subscribers.

Where an application for the grant of an initial franchise was submitted to the County more than sixty (60) days prior to September 15, 1998, such application was still pending on that date, and such application was in compliance with all requirements of this chapter in effect at the time of such application, another application need not be submitted under Section 12-09 provided the applicant agrees to comply with the terms and conditions of this chapter. However, Section 12-09I shall be applicable to all applications, including but not limited to those applications pending as of September 15, 1998.

(Ord. No. 98-20, § 1, 9-15-98)